Why remote depositions are here to stay

By Kenneth Zais, ABA Law Technology Today

Dec. 21, 2020

Laurie Berg, a court reporter in New Hampshire, reminded me that in 2014 she received certification for a new software program for introducing exhibits electronically. She used it for the first time on April 1, 2020, to take a remote deposition over Zoom.

Remember early 2020? The holidays were over, the calendar had turned to a new year. Quiet offices were bustling again. Routines of work, school, family and other obligations were clicking back into place.

Until they weren’t. The COVID-19 pandemic compelled the shift to working from home for businesses that could do so, such as law firms. For the foreseeable future, it is the way we work now.

Electronic exhibits streamline depositions, whether remote or in-person. Technology from eDepoze and other providers is catching on now. Upload two or 200 exhibits beforehand, show and mark them only when the deposition gets underway, and at the end, preserve them with the transcript.

Jurisdictions throughout the country have said discovery must continue. Litigators are obliged to maintain a deposition schedule absent the familiar setting of a conference room. Court orders allowing stenographers to swear in witnesses without being in their presence effectively disallow motions to postpone.

Over the past few weeks, my team and I have checked in with several litigators in the Boston area whose practices are national and international in scope about how they have adjusted to remote depositions.

There is a consensus:

  • The transition has gone unexpectedly well.
  • Court reporting agencies and court reporters have been instrumental for training and tech support.
  • Electronic exhibits are a game changer.
  • Attorneys are gracious, willing to learn and help one another.
  • After the pandemic, remote depositions will not go away. There are too many advantages.

Making the transition

Webinars, small group and one-on-one prep sessions acquaint litigators with best practices for effective remote depositions, bringing a comfort level to all participants. Here’s what attorneys — and court reporters — say about conducting depositions from their home offices.

Shepard Davidson, partner, Business Litigation Group (Burns & Levinson, Boston), recalls some frustration early on when courts shut down. “After a few weeks, it was clear that the crisis was for the long haul. Although I could not move my existing litigation, new disputes were coming up every day. I even proposed a deposition by Zoom, but the other side would not agree. Because there were no rules in place, I could not even move to compel.”

Now, however, a party cannot object to a remote deposition.

“Before the pandemic, I would have thought doing a deposition this way would be inferior to doing it in person.” He sees it differently now that he has conducted a number of depositions remotely.

“Lawyers don’t like change,” Davidson said. “Before, I would never work from home. It was too difficult to get in a frame of reference where I could focus. It was easier to go into the office. Now I have options and I’m much more open to using technology in situations where I never would before.”

He’s not alone. “Attorneys who have been practicing for 40 years and have been doing it the same way realize we’ve got a new set of circumstances. This is how we’re going to do it,” Davidson said.

Charla Bizios Stevens, chair, Employment Law Practice Group (McLane Middleton, New Hampshire and Massachusetts), has not taken an in-person deposition since March. She was familiar with Zoom and other videoconferencing platforms before the pandemic because her group uses it for intra-office meetings. But clicking on a link for a deposition was new.

“In the spring, litigation was quiet for a month or two. Then it became evident that we were going to be working from home this way for a while,” Stevens recalled. “We needed to get back to it and schedule depositions.” Skype, which she had used occasionally, was not optimal.

After participating in a few Zoom sessions to defend depositions, she saw little downside. “It’s working fine,” Stevens said. “I don’t feel as if I’m missing a personal connection, and with breakout rooms, we are able to communicate with clients confidentially.” Like anything new, “marking electronic exhibits took getting used to, but now it’s seamless.”

Michael Sullivan, partner (Prince Lobel, Boston), similarly recalled that when he realized working from home would be prolonged, it was imperative to “figure out how to take depositions remotely,” especially since important ones in a big overseas case had been put off for months. “The court made it clear that the case couldn’t wait forever. There were discovery deadlines, and if people couldn’t fly, remote depositions were the only way around it.”

Still, Sullivan wanted to avoid giving witnesses an advantage by sending exhibits beforehand. He found screen-sharing cumbersome for viewing a PDF or Word document. “It doesn’t allow two people to look at a specific portion of the exhibit at the same time,” he noted. The combination of Zoom and a platform to introduce exhibits electronically on the spot resolves the issue and supports an efficient comprehensive digital workflow.

Coordinating with court reporters

Let’s remember that court reporters are also working from their homes. In-person depositions during COVID-19 present a host of public health compliance issues.

In 30 years, Susan Lozzi of Salem, Massachusetts, had done a handful of telephonic depositions from her home. Now, after a lull in the spring, she regularly covers videoconference depositions. And Laurie Berg in New Hampshire is making good use of the electronic exhibit certification she earned six years ago.

Before starting a deposition, attorneys agree to updated stipulations read into the record, allowing the reporter to swear-in the witness remotely. Both Berg and Lozzi find that their preparation for remote depositions with us here at O’Brien & Levine helps them help clients.

Berg acknowledged that depositions over Zoom are still new, and there is some hesitancy. She covers all the connectivity aspects and goes over the differences between in-person and remote depositions — especially reminding the parties to speak one at a time.

“We ask the same for regular depositions, but on Zoom, it is imperative,” Berg said. “If someone else starts speaking, it cuts the audio out. I’m going to have to interrupt to get an accurate transcript.”

Still, Berg and Lozzi find that attorneys are patient and flexible, and witnesses are cooperative as everyone adjusts to remote protocols. Appreciation for electronic exhibits is clearly evident.

“eDepoze is easy to use,” said Berg. “I give the attorneys some tips. You don’t have to be tech savvy. At the first deposition for a big case recently, one attorney was a little intimidated. A couple of depos later, she was showing everyone what to do.”

Lozzi finds that attorneys who are initially wary of remote deposition technology come around once they become familiar with it. “Out of the blue, an attorney asked me how I liked Zoom. I told him that, sure, it was different at first, but now, the efficiency can’t be beat. He agreed and believes that litigation practices will continue to schedule depositions this way when there are no longer restrictions.”

Remote depositions: Post-pandemic normal

In our small survey of litigators and court reporters, a consensus emerged that remote depositions will stick — even when the parties can sit side-by-side without masks in a conference room.

Attorneys observe that clients are overcoming reluctance for counsel to depose witnesses remotely. Plus, they appreciate the cost-savings when a legal team doesn’t need to fly cross-country.

For their part, court reporters are available to go on record at a moment’s notice. No need to pack their equipment, commute and find parking. “People will get used it, and it will become routine,” Lozzi said.

Davidson expects working from home will continue, and remote depositions will no longer be the exception. “Absolutely, there will be more depositions by Zoom in the future. If I’ve got to fly across the country to take a two-hour deposition of a moderately important witness, given the experience with Zoom, there will be a judgment as to whether I need to be in the room.”

Sullivan predicts that in the future, more depositions will be taken remotely. “Travel and other deposition-related expenses can be eliminated to everyone’s benefit,” he said. “Courts are hearing that remote depositions are going reasonably well. I think it’s going to be a lot easier than before to dispense with a live appearance and conduct it remotely. It will be hard to envision going back to the way it was.”

Kenneth Zais is president and owner of O’Brien & Levine Court Reporting Services in Boston, which provides worldwide coverage. An innovator and leader in the field, Zais has continually introduced technology that improves efficiencies for litigation practices at depositions, arbitrations, trials and hearings.

This column originally appeared here.

ABA Law Technology Today was launched in 2012 to provide the legal community with practical guidance for the present and sensible strategies for the future. LTT brings together practicing lawyers, technology professionals and practice management experts from a wide range of practice settings and backgrounds. LTT is published by the ABA Legal Technology Resource Center.